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I hope this finds you well. I am writing today about the Superior Court of Justice’s decision in R. v Capay (2019 ONSC 535) dated January 28, 2019. Consistent with other recent court cases and the OHRC’s earlier calls to action, the factual findings in R. v Capay confirm that segregation is harmful to health, increases risk and undermines safety, rehabilitation and reintegration. As I am sure you will agree, Justice Fregeau’s findings are extremely troubling and call for decisive action.

As this matter is currently in the appeal period, I do not propose to comment on Justice Fregeau’s legal conclusions or the Crown’s decision-making process regarding an appeal. Instead, I am writing to urge this government to take action – where others have failed – to address the systemic human rights issues the Court’s factual findings reveal. R. v Capay and other recent court decisions provide a critical opportunity for the government to show leadership in addressing and eventually ending segregation.

Below, we outline the OHRC’s work to date, summarize the evidence of harm caused by segregation, note its continued overuse in Ontario and the lack of adequate safeguards, and make six recommendations to phase out segregation in a way that respects the human rights of prisoners and the health and safety of correctional officers.

Finally, I would also like to take this opportunity to acknowledge the Ministry of Community Safety and Correctional Services (MCSCS) for its diligence in implementation of the Jahn Order (detailed below). That said, R. v Capay highlights many human rights issues that go beyond the scope of the Jahn Order. We understand that Justice Cole will be providing his interim progress report on the government’s implementation of the Jahn Order in the coming days, and we will be looking to you to ensure that MCSCS addresses any concerns his report identifies.

Minister Jones, you have a unique chance to make our prisons more humane, our communities safer and our justice system more fair. The OHRC welcomes the opportunity to work cooperatively with the Government of Ontario to tackle the immediate challenges and achieve these important goals.

The OHRC warned the previous government that segregation violated rights

For many years, the OHRC warned the previous government that it was not placing sufficient emphasis on protecting the human rights of prisoners. Adam Capay’s treatment shows starkly that the failure to heed the OHRC’s repeated warnings has had a devastating impact on prisoners, victims of crime and the administration of justice.

The OHRC has been actively engaged on segregation reform since 2012. That year, we intervened in a human rights application filed by Christina Jahn against MCSCS. Ms. Jahn was a woman living with mental illness, addictions and cancer. She alleged that she was placed in segregation for the entire period of her incarcerations at the Ottawa-Carleton Detention Centre (approximately 210 days) and experienced brutal and humiliating treatment because of her gender and mental health disabilities.

The OHRC intervened in the case to address the systemic issues that led to Ms. Jahn not receiving appropriate mental health services and being placed in segregation. An additional concern was the fact that women in Ontario’s correctional facilities did not have access to the same mental health services as men.

In 2013, the parties reached a landmark settlement agreement providing for a wide range of public interest remedies to address the use of segregation and treatment of prisoners with mental health disabilities. As part of that extensive agreement, Ontario agreed to prohibit the use of segregation for any individuals with mental illness, except as a last resort. This was followed by a further 2015 agreement requiring Ontario to provide individuals in segregation with an information handout about their rights.

In its January 2016 submission to MCSCS’ Provincial Segregation Review, the OHRC identified the harmful effects of segregation and called on the government to eliminate its use. As an interim measure, the OHRC recommended that MCSCS place strict limits on the use of segregation, in line with those recommended by the United Nations Special Rapporteur on Torture and the Ashley Smith Inquest Coroner’s Jury, including (a) prohibiting the use of indefinite segregation, (b) prohibiting the use of segregation in excess of 15 consecutive days, and (c) restricting the use of segregation to 60 aggregate days in a calendar year.

In October 2016, after obtaining statistical information from MCSCS about the extent of segregation use in its correctional facilities, and meeting Adam Capay while touring the Thunder Bay Jail, the OHRC provided supplementary submissions to further inform MCSCS’ Provincial Segregation Review. We renewed our call to eliminate the use of segregation and as an interim measure place strict limits on its ongoing use.

In September 2017, based on the OHRC’s ongoing concerns about Ontario’s overuse of segregation and discriminatory treatment of people with mental health disabilities, we filed a contravention application with the Human Rights Tribunal of Ontario (HRTO) alleging that the government had failed to comply with the public interest remedies in the 2013 Jahn settlement agreement. The OHRC alleged that Ontario had failed to meet its legally binding commitments to prohibit the use of segregation for people with mental health disabilities, provide mental health screening and services, and accurately document, review and report on the use of segregation.

On January 16, 2018, with the consent of the OHRC and Ontario, the HRTO issued an Order resolving the 2017 contravention application. The Order requires Ontario to achieve “operational compliance” with the original Jahn public interest remedies (including mental health screening, access to mental health services, and prohibiting segregation barring undue hardship for people with mental illness), develop and fully implement a system for accurately identifying prisoners with mental health disabilities, and collect and publicly report disaggregated data on segregation use.

The Order also required the government to retain an independent expert to assist with implementing the settlement (Dr. Kelly Hannah-Moffat) and an independent reviewer to publicly report on Ontario’s compliance with the terms of settlement (Justice David Cole)

However, as noted above, the human rights concerns previously raised by the OHRC, and which were confirmed by the Court in R. v Capay, go beyond those addressed by the Jahn Order.

Segregation is harmful to health, increases risk and undermines safety, rehabilitation and reintegration

It is now abundantly clear that segregation is harmful to mental and physical health, and undermines institutional safety, rehabilitation and reintegration. Justice Fregeau’s findings regarding the harm caused by segregation confirm the OHRC’s previous submissions to MCSCS and are consistent with recent findings by courts in Ontario, British Columbia and Alberta.

Justice Fregeau relied on uncontroverted evidence establishing that “segregation exacerbates prior mental health problems and can lead to the development of previously undetected mental health problems.” Dr. John Bradford, the psychiatrist who testified at Mr. Capay’s application, gave further uncontroverted evidence that prisoners placed in segregation “become anxious, depressed or both. They undergo cognitive disturbances…so the cognitive effects can be quite profound.”

Justice Fregeau also found, based on Dr. Bradford’s evidence, that “it has consistently been shown that the mental and physical health effects of segregation are significant and profound. Pre-existing mental disorders are aggravated,” and that segregation is also associated with elevated incidences of self-harming behaviour and increased risk of suicidal behaviours.

These findings are consistent with those of the Ontario Superior Court of Justice in Canadian Civil Liberties Association (CCLA) v Canada, in which the Associate Chief Justice Marrocco accepted expert evidence that “prisoners experience the isolated conditions of solitary confinement, sensory deprivation, and constant 'lock down' status very negatively and stressfully,” that “segregation appears to be a significant risk factor for the development of psychiatric symptoms including depression and suicidal ideation, as well as psychiatric symptoms generally,” and that “long-term segregation may lead to the development of previously undetected psychiatric symptoms.” Associate Chief Justice Marrocco also found that the negative psychological effects of segregation “can occur within days.”

The British Columbia Supreme Court also recently found that administrative segregation subjects prisoners to a “significant risk of serious psychological harm, including mental pain and suffering, and increased incidence of self-harm and suicide.” Based on the significant evidence before it, the court in BCCLA v Canada concluded that “rather than prepare inmates for their return to the general population, prolonged placements in segregation have the opposite effect of making them more dangerous both within the institution’s walls and in the community outside.”

In essence, the B.C. Supreme Court found that prolonged segregation elevated risk, and undermined institutional safety, rehabilitation and reintegration. Earlier this year, the Alberta Court of Queen’s Bench reached a similar conclusion in R. v Prystay. These findings from across the country confirm that segregation is bad correctional policy insofar as it accomplishes nearly none of the goals of modern correctional practice.

Segregation continues to be overused in Ontario

Despite the clear harm caused by segregation and its ineffectiveness, data released by MCSCS shows that a significant number of prisoners continue to be held in segregation, many for extended periods of time.

A December 2015 data sample provided by MCSCS to the OHRC showed that on any given day, 6-8% of the total prison population (about 477-636 people) were in segregation and that over 20% of segregation placements were for 15 days or longer.

Over three years later, there is no sign of significant improvement. MCSCS’ May 2018 data (released pursuant to the Jahn Order) shows nearly 4,000 individual segregation placements over a two-month period, with 657 segregation placements exceeding 15 days.

The numbers are large and it can be hard to remember that each number represents a person. Adam Capay’s treatment is a reminder of the lived reality behind the numbers and the long-term negative consequences that segregation has on prisoners, correctional officers, victims of crime, the community and the administration of justice.

Ontario does not have effective safeguards in place

Despite the harm associated with segregation and its ongoing use, Ontario does not have effective safeguards to protect vulnerable prisoners held in segregation.

Inadequate review of segregation decisions

In its January 2016 submissions to the Ministry’s Provincial Segregation Review, the OHRC recommended that MCSCS “make segregation placement decisions and healthcare assessments subject to external and independent review and oversight, including judicial review.”

In our January 2016 submissions, the OHRC analyzed MCSCS’ (still current) review process, and noted that “repeated cases of troubling segregation use – despite the application of an internal review process – have underscored the necessity of external and independent review.” Three years later, Justice Fregeau has confirmed that the system for reviewing segregation placements in Ontario is broken.

In holding that Adam Capay’s Charter rights were violated, Justice Fregeau found that it was “obvious that the segregation review process in the case of the accused was meaningless at the institutional and regional levels.” He based his conclusion on evidence that the administrative summaries of Mr. Capay’s health records failed to accurately reflect the psychiatrist’s assessments; expert evidence that Mr. Capay’s segregation reviews had often been missing and had been limited to one- or two-line comments “reiterating generic reasons noted on previous reasons,” as well as the testimony of numerous MCSCS officials whose evidence showed that continued segregation was always supported by regional reviewers. Officials at both the institutional and regional level testified that they were unable to recall “a single occasion” where continued segregation was not supported at the regional level. One regional official even testified that they did not think it was their role to interfere with a segregation decision supported by a social worker or a psychiatrist.

While the application in R. v Capay did not directly challenge the constitutionality of MCSCS’ statutory framework governing segregation review, the Court did reflect on the systemic problems with the current system, noting that the evidence heard “demonstrates a disturbing pattern of disregard for policy procedure, and inmates’ rights within the Ontario correctional system.” Justice Fregeau also found that the misconduct in the case before him was “not isolated,” and that the “inadequacy and ineffectiveness of the segregation review process in Ontario has been a long standing and ongoing problem.”

These conclusions are consistent with those of the Ontario Superior Court in the CCLA case, in which the Court held that a robust duty of fairness applies to the decision to maintain an inmate in administrative segregation and that the failure to provide for independent review of such decisions violates the Charter. That aspect of the decision was not appealed and is the law in Ontario.

While Associate Chief Justice Marrocco suggested in CCLA that an independent review could be conducted by corrections officials outside the specific institution, the findings in R. v Capay demonstrate that constitutionally-compliant independence cannot be effectively achieved through an internal Ministry process.

Inadequate services for Indigenous prisoners

R. v Capay also highlights the need for MCSCS to take immediate action to ensure that First Nations, Métis and Inuit (Indigenous) prisoners receive services that meet their unique cultural, spiritual and linguistic needs.

The Truth and Reconciliation Commission’s Calls to Action direct federal, provincial and territorial governments to “commit to eliminating the overrepresentation of Aboriginal people in custody over the next decade,” and to “work with Aboriginal communities to provide culturally relevant services to inmates on issues such as substance abuse, family and domestic violence, and overcoming the experience of having been sexually abused.”

Justice Fregeau’s findings in R. v Capay show that Ontario has not made sufficient progress in ensuring that Indigenous prisoners receive the culturally relevant services they require. The evidence before Justice Fregeau established that Mr. Capay received limited culturally relevant services prior to meeting with the OHRC in October 2016. The evidence established that in his four years of segregation prior to meeting with the OHRC, Mr. Capay was visited by a Native Inmate Liaison Officer (NILO) only two times.

Once again, the experience of Mr. Capay in this respect was entirely consistent with what I have seen and heard in my tours of several provincial correctional facilities. In February 2017, every prisoner I spoke to on my visit to the Kenora Jail complained about irregular and insufficient access to cultural and spiritual programming, and limited access to outdoor space for traditional ceremonies. I heard that programming offered by the NILO did not include smudging. One prisoner told us that management considered access to spiritual programming to be a privilege rather than a right.

As described in the OHRC’s Policy on preventing discrimination based on creed, the Ontario Human Rights Code (Code) requires that provincial correctional services accommodate Indigenous peoples’ spiritual beliefs and customary practices, including ceremonies and sacred customs. Failure to accommodate a person’s Indigenous spiritual belief or practice in a timely and appropriate way may be discriminatory under the Code. Provincial jails also have an obligation to design services to be inclusive of prisoners who wish to practice their Indigenous spirituality or culture. This should include ensuring that staff have the necessary cultural competency skills to recognize and meet the creed-related needs of Indigenous peoples. It should also include human resources policies to ensure that Indigenous persons are recruited and promoted.

Professor Michael Jackson, an expert in international and Canadian correctional law, policy and practice, provided the Court in R. v Capay with his opinion and evidence that segregation decisions for Indigenous prisoners should be made based on a full contextualization of the Indigenous prisoner’s systemic and background factors, consistent with Gladue principles. Such an approach is consistent with the Court of Appeal’s holding in United States of America v Leonard, that the consideration of Gladue principles should be considered for all interactions of Indigenous peoples with the justice system. Professor Jackson gave evidence that such an approach would assist in identifying Indigenous programming that may be available to address the prisoner’s needs and mitigate risk in a culturally appropriate manner. Professor Jackson’s evidence was that providing “culturally appropriate supports” could have mitigated Mr. Capay’s perceived risk and contributed to his removal from segregation.

While Justice Fregeau ultimately held that the evidence before him was insufficient to establish a claim that segregation had a disproportionately negative impact on the accused as an Indigenous person for the purposes of the Charter, the findings of the Court regarding Mr. Capay’s access to NILO and other cultural services remains deeply troubling.

An action plan to end segregation in Ontario

With the release of R. v Capay, the people of Ontario will expect the Government of Ontario to take active steps to address the grave human rights issues associated with the continued use of segregation. In finding earlier this year that the segregation placement at issue in R. v Prystay violated the Charter, Justice Pentelechuk of the Alberta Court of Queen’s Bench remarked:

Societal views on what is acceptable treatment or punishment evolve over time. Forced sterilization, residential schools, lobotomies to treat mental disorders, corporal punishment in schools and the death penalty are all examples of treatment once considered acceptable. Segregation ravages the mind. There is growing discomfort over its continued use as a quick solution to complex problems.

This decision and others from courts across Canada suggest that our society is at a turning point, and I encourage you and your government to be leaders at this pivotal moment.

We call on the government to quickly implement an action plan to end segregation in Ontario based on the following recommendations:

Publicly commit to phasing out the use of segregation in Ontario.

Continue to implement the Jahn Order, including addressing any concerns outlined in the forthcoming report of independent reviewer, Justice David Cole.

Strictly prohibit the segregation of prisoners who:

are pregnant or have recently given birth

are chronically self-harming or suicidal

have a mental health disability or an intellectual disability

are in need of medical observation

have a mobility impairment.

Strictly prohibit indefinite segregation by:

imposing a 15-day cap on all segregation placements, and

restricting the use of segregation to 60 aggregate days in a calendar year.

Take immediate steps to establish an external and independent review process for segregation decisions, including judicial review.